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Scholars: ‘Liberal’ reputation of 9th Circuit overblown

SEATTLE — The 9th U.S. Circuit Court of Appeals, which is weighing the appeal concerning President Donald Trump’s executive order on immigration, is the federal appeals court conservatives have long ridiculed as the “nutty 9th” or the “9th Circus.”

Covering a huge swath of territory — nine western states plus Guam — the San Francisco-based court handles far more cases than any other federal appeals court, including some rulings that have invoked furor from conservatives over the years. Among them: finding that the phrase “under God” in the Pledge of Allegiance is unconstitutional, that the “don’t ask, don’t tell” policy on gays in the military was problematic long before President Barack Obama’s administration ended it, and that states can force pharmacies to dispense emergency contraceptives.

But some legal scholars say the 9th Circuit’s liberal reputation is overblown and that the court has moved to the middle as some of President Jimmy Carter’s appointees — who were considered extremely liberal — have taken semi-retired “senior” status or passed away. A Democratic Congress nearly doubled the number of judges on the court during Carter’s tenure, and his appointees faced easy confirmation in the Senate.

President George W. Bush appointed six of the court’s 25 active judges, but 18 have been appointed by Democrats, though the seven appointed by President Barack Obama are generally considered moderate, said University of Richmond Law School
Professor Carl Tobias.

Tobias called the notion that the 9th Circuit is liberal “dated.” Arthur Hellman, a federal courts scholar at University of Pittsburgh Law School, said the picture of where the court stands in relation to other circuits has become muddier.

“The reputation is certainly deserved based on the history of the last 40 years or so,” Hellman said Monday. “It’s been more liberal, by which we mean more sympathetic to habeas petitioners, civil rights plaintiffs, anti-trust cases, immigration cases. But it’s less of an outlier now than it was.”

That history has prompted repeated, unsuccessful efforts to split the 9th Circuit — most recently in proposals filed this year by Arizona’s congressional delegation. A bill introduced last week by Sens. John McCain and Jeff Flake would put Arizona in a new 12th Circuit with Alaska, Idaho, Montana, Nevada and Washington while leaving California, Hawaii and Oregon plus Guam and the Northern Mariana Islands in the 9th Circuit.

A House version previously introduced by Reps. Andy Biggs and four other Arizona Republican representatives would leave Washington in the 9th Circuit.

In a news release, Biggs said his aim was “to free Arizona from the burdensome and undue influence of the 9th Circuit Court.”

“As a promise to my constituents last year, I introduced this bill to protect Arizona from a federal circuit court that does not reflect the values nor laws of our state,” he said. “The Ninth Circuit cannot handle the number of states currently entrapped within its jurisdiction, causing access to justice to be delayed.”

Tobias said that while the 9th Circuit could use more judges, it makes little sense to split the circuit. California generates so many cases that the 9th is always going to have a heavy workload — it handled 11,888 of the 56,244 cases handled by all federal appeals courts in the 12 months ending last June. And Tobias said he doesn’t consider the sort of judicial gerrymandering Biggs seeks as a valid reason to split the court.

Judge Alex Kozinski, the circuit’s former chief judge, once joked in a New York Times interview that far from splitting the 9th, he was hoping to acquire more territory. He had his sights on Utah, for the good skiing, he said.

The three judges weighing Trump’s travel ban are on the case by virtue of having been randomly assigned to the circuit’s motions panel for this month. Senior Circuit Judge William C. Canby Jr. was appointed by Carter in 1980; Senior Circuit Judge Richard R. Clifton was appointed by Bush in 2002; and Circuit Judge Michelle T. Friedland was appointed by Obama in 2014.

Canby, who is based in Phoenix, was a first lieutenant in the Air Force in the 1950s before becoming a Peace Corps administrator in Ethiopia and Uganda in the 1960s. Clifton, who keeps his chambers in Honolulu, came to the bench from private practice, as did Friedland, who is based in San Francisco.

They were scheduled to hear arguments by phone Tuesday on whether to maintain a temporary restraining order issued by Seattle U.S. District Judge James L. Robart that blocked enforcement of the travel ban concerning seven majority-Muslim nations.